The biggest complaint I hear recently from people calling my firm for help is bullying and harassment by their association. This is no surprise to me since a ruling last year which basically said if you live in an association you better learn to have a thick skin. The courts and the arbitrators lost their patience long ago for the constant bickering in community associations. Now this lack of patience memorialized in a ruling.
Part of the problem is this misconception that because the associations are corporations bringing a lawsuit against one would result in a big damages award, so owners are quick to want to sue their associations and jam up the courts with harassment cases. The reality of the situation is that unless you have been seriously injured, either physically or in some other manner (like losing your job because the association called your employer), you will be lucky to get all of your attorney’s fees and legal expenses, much less anything for pain and suffering. These are just not big dollar cases, which means if you do want to sue you will need to finance the case yourself because they are not eligible for a contingency fee arrangement (pay only if you win).
Don’t misunderstand me — I have seen some horrendous acts against homeowners, some of them criminal, but even in those cases lack of evidence is a problem. The associations are crafty enough to not commit these acts in front of witnesses.
Without regulation by the State of Florida and lack of funds available to the homeowners to bring litigation, the homeowners often have no recourse. The associations know this and know they can get away with violating state laws and the governing documents of the association.
My recommendations for living in a community association are:
1. Move. My opinion is the risks outweigh the benefits of living in an association. You might live in a great association right now, but one election can change everything.
2. If you can’t move, educate yourself. It’s harder to take advantage of someone who knows what their rights are and can stand up for those rights. If you haven’t read your governing documents (Declarations, Bylaws, Articles of Incorporation, Rules and Regulations), do so NOW. If you are not sure what something means, pay a lawyer to interpret it for you. It’s better to spend a few hundred dollars now then to spend thousands later if you end up in trouble. Also, read the state laws. Chapter 720 of the Florida Statutes governs homeowner associations and Chapter 718 governs condo associations.
3. Try to resolve disputes in an amicable manner first. Respond promptly to all letters and notices you receive from the association. Even if their letter is antagonistic, don’t respond while your angry and try to respond in a friendly manner. These letters are often form letters written by the association lawyer who has to put certain things in them to comply with the law. For instance, the law requires the association to let you know that if you do not pay your past due assessments the association can lien and foreclose on your home. It has harsh language in it, but most of the language is required. Same thing goes for covenant violation notices. If the association is going to impose a fine the association has to provide you with a notice 14 days in advance of a hearing. The word “hearing” is usually enough to upset anyone, but it’s required to be in the notice.
4. Always pay your assessments. No matter how you feel about the way the association is being operated and managed, you cannot withhold assessments and you will lose your home if you do. Even if the money is being embezzled, you still have to pay your assessments. State law makes it an absolute duty to pay and none of the other issues are a defense. Financial hardship is not an excuse. If you know you can’t pay, call your association and ask for payment arrangements before you are late.
5. Maintain your property. The fastest way to get into trouble with your association is to not keep your property maintained. You bought your property in an association so that everyone would keep their property in a neat, attractive manner to preserve property values. We all have hard times sooner or later, but that doesn’t excuse anyone from keeping up their property. A lot of things can be done to keep the property up that don’t cost money, like mowing and edging the lawn or picking up trash, toys, or other items.
6. Keep an eye on the money. It’s alarming how many associations have funds missing or misappropriated. Ask for a copy of the annual financial reports. The associations are required to send out a notice each year letting homeowners know the reports are available. Periodically ask to see the monthly financial reports. You have a right to see any official records as long as you send a certified letter to the association requesting access to inspect the records. Don’t ask for copies to be sent — the associations have no duty to provide the copies other than during the inspection. The association has ten (10) business days (five for condo associations) to provide you with access to the records.
7. Don’t go looking to pick a fight. The odds are against you, especially if you don’t have deep pockets. Once you become involved in a dispute with your association chances are you will never be treated decently again. It gets personal. It shouldn’t, but it does because this is a corporation that is run by your neighbors.
8. Attend meetings and encourage your neighbors to attend meetings. Associations become a problem when the homeowners don’t care to be involved. This goes back to item #2. You can’t educate yourself if you don’t know what’s going on in your neighborhood.
9. Campaign to be a board member. Again, lack of participation by the homeowners leads to rogue boards and abusive associations.
10. If you must litigate, make sure it’s over something really important and not just name calling or a general dislike for your associations. Ask yourself if it’s something worth you spending 3-4 years in a court case over and spending tens or hundreds of thousands of dollars over. There is a financial cost to litigation as well as an emotional cost. Once you engage in litigation with your association you can’t just walk away. If you back out you will have to reimburse the association their legal fees, which could reach $100,000 or more very quickly. Make sure you hire a lawyer who has experience litigating against associations. It’s not your typical court case. There are pre-suit requirements and special rules.
Finally, contact your elected officials and tell them we need state regulation for homeowner associations. We need a state agency to oversee the homeowner associations. We have regulation for condo associations. While it’s not the ultimate fix to the problem, it’s an improvement and arbitration with the State of Florida is less expensive then litigation in civil court.